This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On November 10, 2009, plaintiff filed what he styles as a Writ of Quo Warrantor, alleging that the individual defendants are not qualified to hold their government offices because they did not execute and file valid loyalty oaths as required by the state and federal constitutions, and therefore must be removed from those offices. Dckt. No. 3 at 6-7. Plaintiff alleges that in January 2007, defendant Nemeth falsely issued a vehicle code citation to plaintiff, that Newell issued arrest warrants and prosecuted plaintiff without any lawful authority, and that as a result, plaintiff was incarcerated for 60 days in Nevada County jail under defendant Royal's unlawful authority. Id. at 6. Plaintiff alleges that "California Rule of Civil Procedure 803 and 811 give this court subject matter jurisdiction over this quo warrantor petition." Id. at 4.
Now pending before the court are (1) defendants County of Nevada, Clifford Newell, John Spencer, Robert Shulman, Dale Flippin, Hank Weston, and Keith Royal's (collectively, "the County defendants") motion to dismiss plaintiff's Writ of Quo Warrantor pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Dckt. No. 6; (2) defendant California Highway Patrol's ("CHP") motion to dismiss plaintiff's Writ of Quo Warrantor, Dckt. No. 8; (3) plaintiff's motion for leave to file an amended Writ of Quo Warrantor, Dckt. No. 25; and (4) defendant Yolanda Nemeth's motion to set aside the clerk's entry of default against her and motion to dismiss, Dckt. No. 30.
I. Nemeth's Motion to Set Aside Clerk's Entry of Default
On December 21, 2009, the clerk entered the default of defendant Nemeth. Dckt. No. 21.
Nemeth moves to set aside that entry of default, arguing that good cause exists to do so because plaintiff failed to serve her and because she has not engaged in any culpable conduct, has several meritorious defenses to plaintiff's Writ of Quo Warrantor, and plaintiff will not be prejudiced by setting aside the entry of default. Id. at 6, 7.
Pursuant to Federal Rule of Civil Procedure 55(c), the court may set aside the entry of default "for good cause." Fed. R. Civ. P. 55(c). In the Ninth Circuit, this includes consideration of "whether the defendant's culpable conduct led to the default; whether the defendant has a meritorious defense; and whether [setting aside the entry of default] would prejudice the plaintiff." TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001). This tripartite test is "disjunctive," meaning that the district court is free to deny the motion if any of these three factors is shown to exist. American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108--09 (9th Cir. 2000).
With regard to a defendant's "culpable" conduct, failing to respond to a lawsuit of which the defaulting party has actual knowledge is not "culpable" where defendant offers "a credible, good faith explanation negating any intention to take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise manipulate the legal process." TCI Group Life Ins. Plan, 244 F.3d at 697. With regard to whether a defendant lacks a meritorious defense, the defendant need not show that it will prevail, only that there is a bona fide chance that such a result will occur. Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984); Jones v. Phipps, 39 F.3d 158, 165 (7th Cir. 1994). Finally, with regard to prejudice, the plaintiff must be able to show that the delay resulted in the loss of evidence, that it increased the difficulty of discovery, or that it thwarted plaintiff's ability to obtain relief. Cutting v. Town of Allenstown, 936 F.2d 18, 22 (1st Cir. 1991) (plaintiff died in intervening period); Northwestern Mut. Life Ins. Co. v. DeMalleraym, 789 F. Supp. 651, 654 (S.D.N.Y. 1992) (loss of records in interim). "There is no prejudice to the plaintiff where the setting aside of the default has done no harm to plaintiff except to require it to prove its case." Lacy v. Sitel Corp., 227 F.3d 290, 293 (5th Cir. 2000); see also TCI Group Life Ins. Plan, 244 F.3d at 701.
Although the parties dispute whether defendant Nemeth was properly served, and therefore whether the entry of default was proper to begin with (compare Dckt. No. 30 at 6 with Dckt. No. 31 at 7), Nemeth has shown that her default should be set aside because she did not engage in any culpable conduct, she has a meritorious defense to the action, and plaintiff will not be prejudiced by the default being set aside. Nemeth submitted a declaration averring that she was never personally served with the summons or complaint and never authorized anyone to accept service on her behalf; she does not live or work in Sacramento and she is not assigned to a CHP station in Sacramento; and the first time she learned of this lawsuit was when she was contacted by CHP legal staff and a deputy attorney general to determine if she had been served with process. Dckt. No. 30-2. Further, as discussed below, Nemeth has a meritorious defense to plaintiff's Writ of Quo Warrantor: lack of subject matter jurisdiction. Indeed, the action is dismissed below for that reason. Finally, plaintiff will not be prejudiced by the default being set aside because this action must be dismissed for lack of jurisdiction. Therefore, defendant's motion to set aside the clerk's entry of default against her will be granted.
II. Defendants' Motions to Dismiss
A. Subject Matter Jurisdiction
All of the defendants also move to dismiss plaintiff's Writ of Quo Warrantor pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
1. Standards "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute...." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to seek dismissal of an action where federal subject matter jurisdiction is lacking. "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001).
A party may seek dismissal for lack of jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a factual challenge, the court may consider evidence demonstrating or refuting the existence of jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). "In such circumstances, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)).
The court is mindful of plaintiff's pro se status. Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). However, although the court must construe the pleadings of a pro se litigant liberally, Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985), that liberal interpretation may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn ...